United States v. Shontay Dessart
2016 U.S. App. LEXIS 9031
| 7th Cir. | 2016Background
- Customs intercepted three packages addressed to Dessart (and an associate) containing vials of white powder; agents suspected human growth hormone (HGH) and notified the FDA.
- FDA Special Agent Loris Cagnoni investigated, reviewed an anonymous tip about an online “pharmacy” (EDS-Research.com) and found listings for products with active ingredients of prescription drugs and a “for research only” disclaimer.
- Cagnoni sought and obtained a search warrant for Dessart’s Reedsville residence; agents executed a controlled delivery and searched the home, seizing manufacturing equipment, raw ingredients, labeled bottles, shipping materials, business records, and ready-to-ship packages.
- Chemical testing later showed the substances contained active ingredients of various prescription drugs (e.g., sildenafil, tadalafil), not HGH.
- Dessart was indicted on multiple counts under the Food, Drug, and Cosmetic Act for operating an unregistered drug-manufacturing business and introducing/misbranding drugs in interstate commerce; the government alleged intent to defraud or mislead the FDA to elevate penalties to felonies.
- District court denied suppression (warrant upheld; Franks hearing denied), excluded then later admitted some Appleton-apartment evidence under inevitable discovery, case went to trial, and a jury convicted Dessart on all counts; Seventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause for warrant | Warrant affidavit lacked probable cause; agent’s observations and tip insufficient | Affidavit contained agent’s observations, corroborating anonymous tip, and website evidence | Upheld — magistrate had ample probable cause; deferential review applied |
| Franks hearing request | Agent knowingly/recklessly lied about lab testing time ("~6 weeks") — material to warrant | The estimate was honest, typical, immaterial to probable cause, and not knowingly false | Denied — no substantial preliminary showing of intentional/reckless false statement and estimate was within typical range |
| Sufficiency of evidence for deceptive intent (§333 enhancer) | No proof Dessart intended to deceive FDA; "for research only" labels could be innocent | Evidence shows knowledge of FDA rules, marketing for human use, packaging/labels disclaimers to evade regulation | Affirmed — evidence permitted reasonable inference Dessart intended to mislead FDA or consumers |
| Jury instruction on "prescription drug" | Instruction incomplete; should include §353(b)(1)(B) or §379g definitions | Omitted subsections inapplicable because products were not FDA-approved and §379g applies only to a different subpart | Affirmed — instruction tracked statutory text (subsection (A)) and omission was proper |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (establishes requirement for preliminary showing to obtain Franks hearing)
- Illinois v. Gates, 462 U.S. 213 (totality-of-the-circumstances standard and deference to magistrate probable-cause determinations)
- Ornelas v. United States, 517 U.S. 690 (discussion of warrant preference and review standards)
- United States v. McIntire, 516 F.3d 576 (Seventh Circuit on deference to issuing magistrate)
- United States v. Burge, 683 F.3d 829 (officer’s personal observation of suspected contraband supports probable cause)
- United States v. Glover, 755 F.3d 811 (use of anonymous tips in totality-of-the-circumstances analysis for probable cause)
- United States v. Warren, 593 F.3d 540 (standard for reviewing sufficiency of evidence on appeal)